August 06, 2007

Inoperative

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. -- United States Constitution, Fourth Amendment*

President Bush signed into law on Sunday legislation that broadly expanded the government’s authority to eavesdrop on the international telephone calls and e-mail messages of American citizens without warrants.

Congressional aides and others familiar with the details of the law said that its impact went far beyond the small fixes that administration officials had said were needed to gather information about foreign terrorists. They said seemingly subtle changes in legislative language would sharply alter the legal limits on the government’s ability to monitor millions of phone calls and e-mail messages going in and out of the United States.

They also said that the new law for the first time provided a legal framework for much of the surveillance without warrants that was being conducted in secret by the National Security Agency and outside the Foreign Intelligence Surveillance Act, the 1978 law that is supposed to regulate the way the government can listen to the private communications of American citizens.

"This more or less legalizes the N.S.A. program," said Kate Martin, director of the Center for National Security Studies in Washington, who has studied the new legislation.

The NSA warrantless surveillance program had been one of the strongest and clearest grounds on which to impeach Bush. The program violated then-existing law, and Bush admitted it. What had been illegal is now fully legal -- thanks to a Congress controlled by the Democrats.

It is now impossible for Bush to be impeached on this basis. How exactly would that argument go? "This heinous and illegal program was so blatantly unconstitutional that it merits impeachment as a high crime and misdemeanor. In fact, it's so heinous that we've now made it legal!" Yeah. That'll work.

By changing the legal definition of what is considered "electronic surveillance," the new law allows the government to eavesdrop on those conversations ["between individuals inside the United States and people overseas"] without warrants — latching on to those giant switches — as long as the target of the government’s surveillance is "reasonably believed" to be overseas.

For example, if a person in Indianapolis calls someone in London, the National Security Agency can eavesdrop on that conversation without a warrant, as long as the N.S.A.’s target is the person in London.

Correction: The NSA can eavesdrop on any conversation as long as the NSA says its target is the person overseas.

In fact, even that's not entirely correct:

The new law gives the attorney general and the director of national intelligence the power to approve the international surveillance, rather than the special intelligence court. The court’s only role will be to review and approve the procedures used by the government in the surveillance after it has been conducted. It will not scrutinize the cases of the individuals being monitored.

So any "telephone conversations, e-mail messages and other electronic communications" can be surveilled without a warrant on the order of the attorney general and the director of national intelligence, as long as they say the target is overseas. The court "will not scrutinize the cases of the individuals being monitored."

On what conceivable basis is Gonzales going to be impeached now? "Gonzales has committed numerous unlawful and unconstitutional acts. His actions are so abominable that the Congress granted him untrammeled and unreviewable power never before held by any attorney general. Congress even wiped the entire Fourth Amendment out of the Constitution, so great was their trust in this man!"

Passage of this FISA legislation, which approves and expands the unconstitutional and criminal acts already engaged in by the administration, turns any future effort to impeach Gonzales into intellectual hash. To approve this legislation and to simultaneously push for the impeachment of Gonzales represents the triumph of utter incoherence.

As I went on to discuss in that earlier essay, this Congress isn't going to impeach anyone for anything. At this juncture, it would appear the Bush administration could demand whatever it desired, and Congress would fall over itself in its haste to comply.